Public records law faces budget ax

Previously

The public’s right to know may again become the victim of California’s budget troubles.

Last year, the state decided it would not reimburse local governments for the cost of notifying the public about government meetings, to save about $20 million a year. Because the California constitution prevents the state from imposing mandates without funding them, the cut in funding suspended parts of open-meetings law.

Gov. Jerry Brown’s proposed budget to take effect this summer continues that situation — and would now invalidate certain public-records requirements as well.

A state commission has ruled that the state must reimburse local governments if it requires them to assist the public with records requests and respond within 10 days to them. Brown’s budget says the state will cover no such costs, again lifting the legal requirements.

Terry Francke, the general counsel of the open government group Californians Aware, said the move strikes him as an abstract governmental reaction to a problem that doesn’t exist.

“The danger seems to me that certain organizations that would just as soon have no records act can escape much of the nuisance factor that it causes by simply ignoring the requests,” Francke said.

State finance officials emphasized that they are not telling local governments not to assist the public with records requests or post their agendas three days in advance of meetings.

“We are saying the state should not be on the hook for paying local governments for essentially what they should be doing as a matter of course as part of the best practices of government,” said H.D. Palmer, a spokesman for Brown’s Department of Finance.

The Legislature enacted the California Public Records Act in 1968, stating “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”

The Commission on State Mandates — which hears and decides claims alleging that the state imposed a mandate on local agencies without paying for it — two years ago determined that the Public Records Act provisions would require reimbursement.

The direct cost of duplication, which local governments can bill to the requesters, are not in dispute. The issue is the government cost in responding to requests and assisting members of the public to formulate requests — which the law requires. The Legislative Analyst’s Office estimates annual costs of those functions could reach tens of millions of dollars.

Darren Pudgil, who was the spokesman for former San Diego Mayor Jerry Sanders, said without question public records requests cost some agencies millions of dollars annually to research and respond.

“However, responding to these requests is critically important to maintaining transparency and public trust,” Pudgil said. “I will say that public records requests from the media and from bloggers have gone up significantly over the past few years, and there is a cost associated with responding to those.”

Sen. Leland Yee, D-San Francisco, author of several bills to boost government transparency, has long argued that public records laws and the state’s Brown Act requiring open meetings don’t end up costing the government money.

“You guys doing your jobs as reporters and finding out about waste, fraud and abuse via the Public Records Act and making sure entities adhere to the Brown Act helps ensure that people are spending tax dollars more wisely,” said Yee aide Adam Keigwin.

The legislative analyst has recommended that state lawmakers in taking up the budget recast the mandated provisions as “optional best practices.”

Under that approach, local government officials would be required to either comply with the best practices or declare publicly at their first regularly scheduled meeting of the year that they plan not to do so.

After the open meetings provisions were suspended by the budget situation, an overwhelming number of local governments voluntarily pledged to comply anyway.

Jim Ewert, general counsel at the California Newspaper Publishers Association in Sacramento, said the lone issue brought to his attention came from San Diego County.

The county government was challenged for replacing former top administrator Walt Ekard with no public notice. County lawyers responded, among other arguments, by pointing out that there is no legal basis for challenging the county’s action because the relevant provisions of state law are “no longer operative.”

Charlene Ayers, an activist from East San Diego County, said the costs associated with the open government provisions are a small price to pay to allow the public to monitor and critique its government.

“This is about being able to watch how the government does its job with your money,” she said. “If the public loses this tool, we might as well just turn all of our money over to them.”